Weber County v. Ogden Trece, 2013 UT 62 (October 18, 2013)
Oct 18, 2013
The Utah Supreme Court vacated an injunction against a street gang because the County’s service by publication was insufficient. Ogden Trece, 2013 UT 62, ¶ 64. Under a public nuisance theory, the County sought an injunction prohibiting the gang from engaging in certain acts. Id. ¶ 2. After the complaint was filed, the County personally served five members. Id. ¶ 8. As an additional precaution, the County sought and was authorized to serve the gang by publication, which it did. Id. ¶ 9. The trial court then granted a preliminary and permanent injunction. Id. ¶ ¶ 11, 16. On appeal, the court first held that it lacked appellate jurisdiction because the individual members of the gang raising the appeal were not parties to the trial court action – only the street gang was. Id. ¶ 28. Nonetheless, several individual members filed a petition for extraordinary writ, which the court concluded was the proper means for the nonparties to challenge the district court’s order. Id. ¶ 29. Next, the court concluded that the street gang was amenable to suit as an unincorporated association, even though it was a criminal organization, because it transacted business under a common name. Id. ¶ 33. The court then held that in order to properly serve the gang, the County needed to serve its “officers or managing or general agents or their functional equivalent” or “establish a sufficient factual basis for service by publication.” Id. ¶ 60. Because a proper officer of the street gang was not served, and the County did not show it “exercised reasonable diligence in attempting to identify” the appropriate agent “before requesting alternative service,” the trial court lacked jurisdiction to issue the injunction. Id. ¶ 64.